SURRENDER AND CANCELLATION OF LEASE

SURRENDER AND CANCELLATION OF LEASE

   SURRENDER and CANCELLATION OF LEASE (this “Surrender”), dated as of June 17, 2011, by and between XXX XXX00XX0000, LLC (“Landlord”), having an address c/o American Realty Capital, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXX XXXXXX ANTIQUES, INC. and WILTSHIRE-XXXX, LTD. (collectively, “Tenant”), having an address c/o Seyfarth Xxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq.

WITNESSETH:

WHEREAS, by a lease dated as of October 19, 2001 between Landlord’s predecessor in interest, Urban Development Partners (61) LLC, and Tenant, which lease was amended by letter agreement dated December 5, 2001, by letter agreement dated February 27, 2002 and by letter agreement dated September 9, 2002 (such lease, as amended, the “Lease”), Landlord leased to Tenant the westerly portion of the fourth floor (as more particularly shown on Exhibit A annexed to the Lease, the “Premises”) in the building located at and known as 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the “Building”); and

WHEREAS, Tenant desires to surrender and cancel the Lease and deliver the Premises to Landlord effective as of 11:59 p.m. on June 20, 2011 (the “Effective Date”) and Landlord is willing to accept such surrender upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the mutual covenants hereinafter contained, the parties hereto agree as follows:

1.           Effective as of the Effective Date, Tenant surrenders to Landlord the Lease and term and estate thereby granted, together with the Premises, to the intent and purpose that the estate of Tenant in and to the Premises shall be wholly extinguished and that the term of the Lease shall expire on the Effective Date in the same manner and with the same effect as if such date were the date set forth in the Lease for the expiration of the term thereof.

2.           Tenant hereby represents and warrants that (i) nothing has been done whereby the Lease or the term or estate thereby granted or the Premises or any part thereof have been encumbered in any way whatsoever; (ii) Tenant owns the Lease and has full right to surrender the same; and (iii) no one other than Tenant has acquired, through or under Tenant, any right, title or interest in or to the Lease or the term or estate thereby granted or in or to the Premises or any part thereof. Landlord represents that it is the landlord of the Building and has full power and authority to enter into this Surrender and carry out the terms hereof.

3.           Tenant agrees to deliver possession of the Premises on the Effective Date as if the Effective Date were set forth in the Lease for the expiration date thereof. Any personal property or equipment remaining in the Premises after the Effective Date shall be deemed abandoned by Tenant, and Landlord may dispose of same without liability to Tenant, and Tenant shall be allowed access to the Building to remove such property until July 1, 2011.

4.           Effective as of the Effective Date, Landlord hereby accepts the surrender of the Lease in accordance with the terms hereof. Except as otherwise provided in this Surrender, Landlord and Tenant hereby mutually release each other and the respective legal representatives, successors and assigns of each, of and from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, damages, claims, and demands of every kind and nature whatsoever, in law or at equity or otherwise that either party had, now has or shall or may have against the other relating to any matter whatsoever including, without limitation, those arising under or in connection with the Lease.

5.           (a) Landlord acknowledges that Tenant has made all payments of annual base rent, additional rent and other charges due under the Lease through June 30, 2011. In settlement of all amounts owed to Landlord or that may become due to Landlord under the Lease (including, without limitation, annual base rent and additional rent), Tenant shall pay to Landlord the amount of $48,706.40, as follows: (a) on or before June 28, 2011, the amount of $5,000.00, and (b) on before July 29, 2011, the amount of $15,000, and (c) on or before August 31, 2011 in the amount of $28,706.40. In addition, Landlord shall be permitted to retain the security deposited with Landlord pursuant to Article 32 of the Lease and the same is hereby forfeited to Landlord. The foregoing sums shall be payment in full for all amounts due and to become due under the Lease and Landlord shall have no further claim against Tenant or any guarantor for the payment of any monies arising out of or in connection with the Lease. However, if any payment required to be made hereunder shall not be paid on or before the due date thereof, and if Tenant shall fail to make such payment in full within two (2) business days after written notice from Landlord, then the entire amount of all annual base rent and additional rent due pursuant to the Lease through the original expiration date of the Lease (October 31, 2011) shall immediately be due and payable in full (less any payments made hereunder and less the amount of the security deposit retained by Landlord pursuant hereto) upon demand by Landlord, and Tenant duly acknowledges that Tenant shall be fully liable to make such payment in full.

(b)           If Tenant shall fail to vacate the Demised Premises on or before the Effective Date, Tenant shall be deemed to be a holdover tenant and shall be liable to pay annual base rent equal to two (2) times the annual base rent set forth in the Lease, together with all additional rents due under the Lease until Tenant shall vacate and surrender the Demised Premises.

(c)           Tenant agrees to cooperate with Landlord to allow access to the Demised Premises to Landlord, real estate brokers and prospective tenants prior to the Effective Date.

6.           All notices, requests, demands and other communications shall be in writing and sent by reputable overnight courier or by certified mail, return receipt requested, postage prepaid, or by personal delivery to each party at its respective address set forth on the first page hereof. All notices shall be deemed given one business day after deposit with a reputable overnight courier, or three business days after the date mailed, or upon personal delivery, provided that if a party shall refuse personal delivery of a notice, then the notice shall be deemed given on the date of such refusal. Each party may change its address by notice similarly given to the other party, in which event all notices given thereafter shall be sent to such other address. A copy of any notice to Tenant, simultaneously with the service of same, shall be e-mailed to Tenant’s counsel at xxxxxxx@xxxxxxxx.xxx.

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7.           Landlord and Tenant each represents to the other that it has not dealt or negotiated with any broker in connection with this Surrender. Each party agrees to hold harmless and indemnify the other party from and against any and all liabilities and expenses, including, without limitation, reasonable attorneys’ fees, disbursements and court costs, arising out of or in connection with any breach of the indemnifying party’s representation set forth herein.

8.           The submission of this Surrender to both parties shall not be construed as an offer by any party to terminate the Lease, nor shall a party have any rights with respect hereto unless and until both Landlord and Tenant shall each execute this Surrender and a fully executed copy shall have been delivered to both parties.

9.           The failure of any party hereto to enforce at any time any of the provisions of this Surrender shall in no way be construed as a waiver of any of such provisions or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Surrender shall be held to be a waiver of any other or subsequent breach.

10.           This Surrender may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

11.           The covenants, conditions, provisions and agreements contained in this Surrender shall bind and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.

12.           This Surrender shall be governed by, construed in accordance with and enforced under the internal laws of the State of New York, without regard to principles of conflicts of laws.

13.           Tenant represents and warrants to Landlord that the person executing this Surrender on behalf of Tenant has all right, power and authority to execute this Surrender and to bind Tenant hereto.

14.           This Surrender may be executed in counterparts and each counterpart taken together shall be deemed one and the same agreement. Electronically transmitted or facsimile copies of this Surrender shall be deemed originals for all purposes.

[The balance of this page is intentionally left blank. Signatures appear on the following page.]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Surrender as of the date first above written.

	LANDLORD:
	ARC NYE61ST0001, LLC
	By:	/s/ Xxxxxxx X. Xxxxxx
		Name:  Xxxxxxx X. Xxxxxx
		Title:  President
	TENANT:
	XXX XXXXXX ANTIQUES, INC.
	By:	/s/ Xxxxxxx Xxxxxx
		Xxxxxxx Xxxxxx, President
	WILTSHIRE-XXXX, LTD.
	By:	/s/ Xxxxxxx Xxxxxx
		Xxxxxxx Xxxxxx, President

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